CYNTHIA M. RUFE, District Judge.
Plaintiff, Sen Trinh, filed this action requesting judicial review of the final decision
A district court reviewing a decision of the Commissioner must base its decision on the record of the administrative proceedings and the pleadings of the parties.
In considering whether to approve the report and recommendation of a magistrate judge, a district court must review de novo those portions of the report and recommendation to which a party has objected.
Plaintiff in this case applied for benefits immediately upon receiving a diagnosis of cervical cancer.
Plaintiff is correct that "`[t]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.'"
Plaintiff also objects to the Magistrate Judge noting that Dr. King, who treated Plaintiff's cervical cancer, did not mention fatigue in her treatment note or on a medical form, because the ALJ did not rely on that fact.
The ALJ discussed, but not did not explicitly make a credibility finding with
The ALJ is required to state the reasons for finding a witness's testimony not credible,
It is so
CAROL SANDRA MOORE WELLS, United States Magistrate Judge.
Senh Trinh ("Plaintiff") seeks judicial review, pursuant to 42 U.S.C. § 405(g) of
On August 10, 2006, Plaintiff protectively applied for DIB benefits alleging disability, since May 1, 2006, as a result of cervical cancer. (R. 114, 130). After benefits were denied initially on September 25, 2006, (R. 85-88), Plaintiff requested and was granted an administrative hearing. (R. 7, 89, 96). On October 4, 2007, Plaintiff, represented by counsel, and Mai Huynh, Plaintiff's daughter, appeared before Linda Bernstein, Administrative Law Judge ("ALJ"). (R. 81-82); the hearing was continued to allow the ALJ to request an interpreter to be present to translate Plaintiff's testimony. (R. 82). On November 13, 2007, Plaintiff, through an interpreter, Garry Young, Vocational Expert ("VE"), and Ms. Huynh testified at a second administrative hearing before ALJ Bernstein. (R. 20-78). On January 10, 2008, ALJ Bernstein, using the sequential evaluation process for disability,
Plaintiff, born on November 16, 1944, was sixty-one years old on the date she filed applied for DIB. (R. 114). She graduated high school in Vietnam, (R. 24), and has past work experience as a census
At the November 13, 2007 administrative hearing, Plaintiff testified that she suffers from depression, limited hearing in her left ear, neck, bilateral knee and back pain, and fatigue secondary to radiation and chemotherapy treatments for cervical cancer. (R. 33-41). Plaintiff stated that her cancer treatment that ended in August 2006, see (R. 34), caused her pain and difficulty turning her neck to the right side; she is able to turn her neck more easily after exercising. (R. 35, 37, 42-43). Plaintiff complained that fatigue limits her ability to work and daily morning back pain improves after she exercises. (R. 39-40). In the afternoons, Plaintiff's fatigue, back and neck pain cause her to lie down on the sofa for one-half of an hour to a full hour. (R. 43-44). Plaintiff reported that her headaches improved after exercise. (R. 44).
Plaintiff alleged difficulty standing in the morning; she sits down to dress. (R. 40). Daily, Plaintiff drives herself to the gym to exercise to help alleviate her pain; she had exercised the morning of the hearing for forty-five minutes. (R. 35-36, 47-48). Plaintiff routinely completes two morning exercise classes as well as pool exercises; daily, she exercises at the gym for one to two hours. (R. 36, 45). She cooks, does laundry and sweeps the floor. (R. 37-38). Her daughter grocery shops for her; (R. 36), Plaintiff cannot drive long distances because her eyes get tired. (R. 39). Her daughter drives her to visit her husband who resides in a nursing home. (R. 38). Plaintiff regularly attends religious services at her temple. (R. 38-39).
She testified that she can no longer operate her newsstand because her work hours were very long and she has hearing loss in her right ear. (R. 40-41). Plaintiff stated that she could understand customer's orders in English at the newsstand, while at her computer chip position she communicated with other workers in Vietnamese. (R. 41).
Ms. Mai Huynh, Plaintiffs daughter, testified at the November 13, 2007 administrative hearing regarding Plaintiff's ailments and activities of daily living. (R. 49-69). Ms. Huynh lives and works from her home in New Jersey where she resides with her brother; Plaintiff with Ms. Huynh while she was undergoing cancer treatments. (R. 49, 51-52). At the time of the hearing, Plaintiff only occasionally spents the night with Ms. Huynh (R. 53) and primarily resided in Southwest Philadelphia with another daughter who is disabled due to a mental impairment; Plaintiff does not own the Philadelphia home. (R. 50-53).
Ms. Huynh testified that her mother drives daily to the gym to exercise and does not drive anywhere else. (R. 53). During approximately two hours at the gym, Plaintiff performs various exercises including step aerobics, pool exercises, riding an exercise bicycle, light weight lifting, and walking on the treadmill. (R. 55-56). During the day, Plaintiff keeps herself busy by performing light dusting, washing dishes and clothes, cleaning and cooking. (R. 57, 68). Occasionally, Plaintiffs son or Ms. Huynh accompany Plaintiff when she grocery shops. (R. 68). Ms. Huynh testified that Plaintiff is depressed, routinely lies down and spends portions of her day meditating while reciting Buddhist Mantras; prior to her cancer treatment Plaintiff
Prior to her cancer diagnosis and treatment, Plaintiff performed her work at the newsstand while either on a stool or standing; she often served her customers while seated. (R. 66-67). Plaintiff often had difficulty hearing and communicating with customers many of whom wrote down their orders. (R. 65). In May of 2006, Plaintiff ceased working after the cancer diagnosis, (R. 60-61), and sold her newsstand to her nephew, because the treatment caused fatigue, poor memory, a pinched nerve, numbness in her fingers, headaches, insomnia, acid reflux, and pain. (R. 53-54, 61). Dr. Morrison, Plaintiff's neurologist, recommended that she exercise in lieu of attending physical therapy to alleviate her symptoms, including fatigue. (R. 62-63).
At the administrative hearing the vocational expert ("VE") classified Plaintiff's past position as a cook helper as unskilled
After the administrative hearing, the ALJ issued the following relevant findings:
(R. 13-19).
Judicial review of the Commissioner's final decision is as follows. The Commissioner's findings of fact will not be disturbed if they are supported by substantial evidence. Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir.1999). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). It is more than a mere scintilla of evidence but may be less than a preponderance. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.1988). Overall, this test is deferential to the ALJ and the Court should affirm the ALJ's findings of fact, if they are supported by substantial evidence even when the Court, acting de novo, might have reached a different conclusion. Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986), cert. denied, 482 U.S. 905, 107 S.Ct. 2481, 96 L.Ed.2d 373 (1987). On the other hand, the Commissioner's legal conclusions are subject to plenary review. Schaudeck, 181 F.3d at 431.
In order to be found "disabled" under the Act, Plaintiff must carry the initial burden of demonstrating that she is unable to engage in "any substantial gainful activity by reason of any medically determinable physical or mental impairment... which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). Plaintiff may establish a disability through: (a) medical evidence meeting one or more of the serious impairments detailed in 20 C.F.R., Part 404, Subpart P, App. 1; or (b) proof that the impairment is severe enough that Plaintiff cannot engage in any type of "substantial gainful work which exists in the national economy." Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983); 42 U.S.C. § 423(d)(2)(A).
Under the first method, Plaintiff is considered per se disabled by meeting one of the "listed" impairments. Under the second method, Plaintiff must initially demonstrate that a medically determinable disability prevents her from returning to past employment. See Brown v. Bowen, 845 F.2d at 1214. If Plaintiff proves that her impairment results in functional limitations to performing her past relevant work, then the burden
The ALJ determined that Plaintiff was not disabled at any time through the date of her decision and, therefore, denied her disability benefits. (R. 20). Plaintiff asserts that the ALJ erroneously failed to: (1) properly assess her credibility concerning her complaints of fatigue and the impact fatigue has on her ability to perform her past relevant work; and (2) assess Ms. Hunyh's credibility. Plaintiff's Brief and Statement of Issues In Support of Plaintiffs Request for Review ("Pl.'s Br.") at 4-14. The Commissioner requests that the court affirm his properly supported final ruling. Defendant's Response to Plaintiffs Request for Review ("Def.'s Br.") at 4-16.
Plaintiff argues that the ALJ failed to properly assess her credibility, including whether her fatigue precludes a return to her past relevant work. Pl.'s Br. at 4-12. The Commissioner contends that the ALJ correctly assessed Plaintiff's credibility. Def.'s Br. at 5-14.
Ordinarily, a reviewing court should defer to the ALJ's credibility determination, because he or she has had the opportunity during a hearing to assess the witnesses' demeanor. See Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir.2003). The ALJ must indicate what evidence she is rejecting and provide valid reasons for discounting that evidence. See Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir.2001) (citing Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir.2000)). Although the ALJ's credibility determination is entitled to deference, it must be supported by the record. Reefer, 326 F.3d at 380.
Plaintiff complains that, since undergoing chemotherapy and radiation to treat her cervical cancer, she is disabled by debilitating fatigue. Pl's. Br. at 7. Plaintiff further asserts that despite engaging in a regular two-hour morning exercise regimen, which includes step aerobic classes and walking on a treadmill, she is unable to work a full eight-hour day without resting. Id. In assessing Plaintiff's credibility the ALJ specifically found that:
(R. 18). The ALJ's explanation for finding Plaintiff partially credible is supported by the record. Medical evidence does not buttress Plaintiffs subjective complaints of debilitating fatigue. At the administrative hearing, Ms. Hunyh testified that she attends "every" medical appointment with Plaintiff. See (R. 61-62) (emphasis added). Ms. Hunyh stated that she and Plaintiff complained, on numerous occasions, to Plaintiffs oncologist, radiologist and primary care physician that Plaintiff suffers from constant fatigue. (R. 61). Yet, Plaintiff's numerous complaints of debilitating fatigue are not documented in the medical record. The ALJ discussed Plaintiffs treatment by her neurologist, Tara Morrison, M.D., who opined that Plaintiff had a good response to therapy and encouraged Plaintiff to continue her exercise regimen to treat her headaches, which were eventually cured, and her neck pain. (R. 17); see also (R. 250-51). Dr. Morrison noted that Plaintiff's daughter attended her medical appointments to translate because of a language barrier. (R. 254-55). Ms. Hunyh testified that Dr. Morrison recommended that Plaintiff exercise to treat her mother's fatigue. (R. 63). However, Dr. Morrison's treatment notes indicate that she recommended exercise to treat Plaintiff's headaches and neck pain, not fatigue. (R. 250-55). Dr. Morrison's treatment records do not document any complaints of or treatment for fatigue. (R. 250-65). Likewise, Plaintiff's treatment records from Philadelphia Health Center # 3 reflect no complaints of debilitating fatigue. (R. 17); see also (R. 289-94).
The ALJ noted that, on October 5, 2007, Plaintiffs radiation oncologist, Lydia T. Komarnicky-Kocher, M.D., reported that her response to the cervical cancer treatment was "excellent;" during physical examination Plaintiff had "no complaints whatsoever, and is doing quite well." (R. 17); see also (R. 296). The ALJ discussed Dr. Komarnicky-Kocher's December 31, 2007 response to interrogatories in which Dr. Komarnicky-Kocher indicates that she did not recall any of Plaintiff's complaints of fatigue after or during her treatment and that "complaints related to fatigue would be best charted by [her gynecological oncologist] in that fatigue would be more of a systemic complaint related to that treatment." (R. 17); see also (R. 323). On January 4, 2008, Dr. Komarnicky-Kocher, in a second interrogatory, confirmed that complaints of fatigue would be best documented by Plaintiffs gynecological oncologist; however, Dr. Komarnicky-Kocher now recalled Plaintiffs complaints of fatigue and low energy since completing her chemotherapy and radiation treatments. (R. 324). The court notes that Dr. Komarnicky-Kocher's January 4, 2008 interrogatory response contradicts both her treatment notes that do not mention fatigue and her prior interrogatory responses. See (R. 323). The ALJ's reliance upon Dr. Komarnicky-Kocher's conflicting response, the contemporaneous medical records and Plaintiff's conflicting testimony was proper. (R. 17-18).
The record contains treatment records from Plaintiffs gynecological oncologist, Stephanie A. King, M.D. (R. 193-205, 240-47, 267-74). Dr. Komarnicky-Kocher opined that Plaintiffs complaints of fatigue would be best documented by this physician, because fatigue is often a side effect of chemotherapy. (R. 323-24). On July 7, 2006, following her May 2006 cervical cancer diagnosis, Plaintiff began a daily high-dosage
The ALJ's decision thoroughly discussed Plaintiffs successful treatment for cervical cancer, Dr. Komarnicky-Kocher's treatment records and responses to interrogatories, Dr. Morrison's treatment notes, Dr. King's treatment records, medical records from Philadelphia Health Center # 3, the inconsistencies in Plaintiffs and Ms. Huynh's testimony and her activities of daily living to assess her credibility regarding allegations of debilitating fatigue. (R. 15-18). Plaintiff has failed to present any medical evidence, i.e. treatment notes or lab reports, or a valid argument to contravene the ALJ's credibility findings. The ALJ articulated valid reasons for limiting Plaintiffs credibility, hence, this court will not disturb her findings. See Fargnoli, 247 F.3d at 43 (citing Burnett, 220 F.3d at 121).
Plaintiff argues that the ALJ committed reversible error in failing to adequately assess and make specific credibility findings regarding the testimony of, Ms. Hunyh, Plaintiffs daughter. Pl.'s Br. at 12-14. The Commissioner contends that the ALJ discussed Ms. Hunyh's testimony, at length, and found that Plaintiff was not credible due to several inconsistencies between Plaintiffs testimony and Ms. Hunyh's testimony. Def.'s Br. at 14. The Commissioner further asserts that the ALJ made implicit findings of Ms. Hunyh's credibility and committed no reversible error warranting remand. Def.'s Br. at 15-16.
In her decision, the ALJ specifically noted several inconsistencies between Ms. Hunyh's testimony and that of Plaintiff:
(R. 16). The ALJ discussed Ms. Hunyh's testimony in detail and explicitly found Plaintiffs level of activity to be inconsistent with her subjective complaints and responses to her Disability Questionnaire. (R. 16); see SSR 96-7p, 1996 WL 374186 *5-*8 (An ALJ must consider the consistency of a Plaintiffs statements when evaluating credibility and may draw inferences from family and friends). Thus, the ALJ made an implicit credibility finding regarding Ms. Hunyh's testimony and determined that her testimony does not fully corroborate Plaintiffs testimony and responses. (R. 15-16). However, in this Circuit, an ALJ must explicitly assess the credibility of each witness and explain what testimony has been accepted or rejected. See Burnett, 220 F.3d at 122. The ALJ's treatment of Ms. Hunyh's testimony, therefore, contravenes Third Circuit requirements. However, unlike the ALJ in Burnett, this ALJ did not simply ignore Ms. Hunyh's testimony; rather, the ALJ failed to assess directly Ms. Hunyh's testimony and state what, if any, of Ms. Hunyh's testimony is accepted or rejected. Despite this oversight, this court finds that the ALJ's failure to explicitly state her credibility finding regarding Ms. Hunyh's testimony is, harmless error that does not necessitate remand. See Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.2005) (explaining that in determining whether or not remand is necessary this court must assess whether or not the seemingly overlooked data would have proven "outcome determinative.") The inconsistencies as summarized by the ALJ, between Plaintiffs responses to questionnaires and her testimony, in addition to the inconsistencies in Ms. Hunyh's own testimony, see (R. 15-18), support the ALJ's finding that Plaintiff is not fully credible. Since remand to further evaluate Ms. Hunyh's testimony and credibility would not change the outcome of Plaintiffs case, the error is harmless.
After a thorough review of the record, this court finds that all of the Commissioner's
AND NOW, this 20th day of June, 2011, I respectfully recommend that:
It be so ORDERED.